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21 November 2013

Law on the Disclosure of the Identity of Rape Victims

(Note: This post comprises preliminary notes for a legal opinion drafted a while ago. I haven't re-checked it before posting it.)

Indian law does not prohibit just the disclosure of the names of rape victims but of information potentially leading to the identification of rape victims. The protection of identity of rape victims could be considered to be requirements both criminal law and civil law — the identity of rape victims is protected under statutory law, case law and (presumably) tort law relating to privacy (not to mention constitutional law).

This post focusses on statutory legal provisions to protect the identity of those who have been sexually assaulted:Section 228A of the Indian Penal Code, (i.e. IPC), which was first introduced in 1983 and subsequent amended in 2013, prohibits the publication of the identity of rape victims (specifically, persons against whom offences under Sections 376, 376A, 376B, 376C, 376D and 376E, IPC, are alleged or found to have been committed). The prohibition under this Section has been worded to prohibit the publication of not only victims’ names but also any matter which could make victims’ identities known. Those who violate the publication prohibition under s. 228A, IPC, are liable to be punished with either simple or rigorous imprisonment for up to two years and are be liable to be fined unless the publication is:

(a) by or under the order in writing of the officer-in-charge of the police station or the police officer making the investigation into such offence acting in good faith for the purposes of such investigation; or

(b) by, or with the authorisation in writing of, the victim; or

(c) where the victim is dead or minor or of unsound mind, by, or with the authorisation in writing of, the next of kin of the victim:

Provided that no such authorisation shall be given by the next of kin to anybody other than the chairman or the secretary, by whatever name called, of any recognised welfare institution or organisation.

Explanation.--For the purposes of this sub-section, "recognised welfare institution or organisation" means a social welfare institution or organisation recognised in this behalf by the Central or State Government.

As a Supreme Court ruling (in the case of Satya Pal Anand v. State of M.P. : 2013(10)SCALE88) highlighted: “Section 228A of the Indian Penal Code makes disclosure of identity of the victim against whom offences under Section 376, Section 376A, Section 376B,Section 376C or Section 376D is alleged or found to have been committed an offence. Sub-section (2) of Section 228A Indian Penal Code exempts two categories of police officers, namely, (i) officer in-charge of the police station and (ii) police officer making the investigation into such offence.”

Further, under Section 228A(3), IPC, whoever publishes any matter in relation to any proceeding before a court with respect to an offence under Section 376, 376A, 376B, 376C, 376D or 376E, IPC, without the previous permission of such court may be punished with either simple or rigorous imprisonment for up to two years and are be liable to be fined unless the publication is of a judgment of any High Court or the Supreme Court.

There is no statutory prohibition on courts themselves using victims’ names in their judgments although the Supreme Court has addressed this concern (or ‘looophole’ through which victims’ names could enter the public domain) in a number of judgments: in State of Karnataka v. Puttaraja : AIR2004SC433, the Supreme Court had held that the names of rape victims should not be mentioned in court cases:

We do not propose to mention name of the victim. Section 228-A of the Indian Penal Code, 1860 (in short the 'IPC') makes disclosure of identity of victim of certain offences punishable. Printing or publishing name of any matter which may make known the identity of any person against whom an offence under Sections 376, 376-A, 376-B, 376-C or 376-D is alleged or found to have been committed can be punished. True it is, the restriction does not relate to printing or publication of judgment by High Court or Supreme Court. But keeping in view the social object of preventing social victimisation or ostracism of the victim of a sexual offence for which Section 228-A has been enacted, it would be appropriate that in the judgments, be it of this Court. High Court or lower Court, the name of the victim should not be indicated we have chosen to describe her as 'victim' in the judgment.

Beyond this, Section 23 of the Protection of Children from Sexual Offences Act, 2012, which defines a ‘child’ as ‘any person below the age of eighteen years’ contains a procedure for the media:

(1) No person shall make any report or present comments on any child from any form of media or studio or photographic facilities without having complete and authentic information, which may have the effect of lowering his reputation or infringing upon his privacy.

(2) No reports in any media shall disclose, the identity of a child including his name, address, photograph, family details, school, neighbourhood or any other particulars which may lead to disclosure of identity of the child:

Provided mat for reasons to be recorded in writing, the Special Court, competent to try the case under the Act, may permit such disclosure, if in its opinion such disclosure is in the interest of the child.

(3) The publisher or owner of the media or studio or photographic facilities shall be jointly and severally liable for the acts and omissions of his employee.

(4) Any person who contravenes the provisions of sub-section (1) or sub-section (2) shall be liable to be punished with imprisonment of either description for a period which shall not be less than six months but which may extend to one year or with fine or with both.

And, although not immediately relevant to the subject at hand, it is worth noting that Section 21 of the Juvenile Justice (Care and Protection of Children) Act, 2000, also protects the identity of alleged rapists who are juveniles:

21. Prohibition of publication of name, etc., of juvenile in conflict with law or child in need of care and protection involved in any proceeding under the Act.

(1) No report in any newspaper, magazine, news-sheet or visual media of any inquiry regarding a juvenile in conflict with law or a child in need of care and protection under this Act shall disclose the name, address or school or any other particulars calculated to lead to the identification of the juvenile or child nor shall any picture of any such juvenile or child be published:

Provided that for reasons to be recorded in writing, the authority holding the inquiry may permit such disclosure, if in its opinion such disclosure is in the interest of the juvenile or the child.

(2)Any person who contravenes the provisions of sub-section (1), shall be liable to a penalty which may extend to twenty-five thousand rupees.

And while the Code of Criminal Procedure generally requires trials to be open (under Section 327), there are exceptions. Subject to a proviso, the trials ‘of rape or an offence under section 376, section 376A, section 376 B, section 376C, section 376D or section 376E of the Indian Penal Code’ which are to be conducted in camera, as far as practicable by a woman Judge or Magistrate. Further, no person may ‘print or publish any matter in relation to any such proceedings, except with the previous permission of the Court provided that the ban on printing or publication of trial proceedings in relation to an offence of rape may be lifted, subject to maintaining confidentiality of name and address of the parties’.

Apart from this, there are, of course, a number of guidelines and policies which are relevant when it comes to reporting rape.

Addendum:

Personally, the letter of the law aside, I also believe that there are ethical questions involved in the reporting of crimes involving violence against women, particularly sexual violence. While I do, very strongly believe that such crimes should be reported, I have reservations about the detail in which they need to be reported to bring the issue of VAW or a specific instance of VAW to light. In particular, I question the need to report in explicit (and possibly lurid) detail on individual cases especially without the consent of the person against whom violence has / has allegedly been perpetrated — I see no reason to do so other than to cater to the voyeurism of the reader and perhaps even that of the writer.

In that context:

Find the argument abt balancing privacy of a person assaulted with public interest to highlight crime by ors sharing details of it absurd. +
— Nandita Saikia (@nsaikia) November 21, 2013

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